Phillips v. Hooper ( 2022 )

Case: 19-30199 Document: 00516190683 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2022
No. 19-30199
Lyle W. Cayce
Clerk
Dontrale Demarko Phillips,
Petitioner—Appellant,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:17-CV-1041
Before Jones, Haynes, and Costa, Circuit Judges.
Per Curiam:*
Dontrale Demarko Phillips appeals the denial of his 28 U.S.C. § 2254petition challenging his state court convictions for armed robbery. We
granted a Certificate of Appealability (“COA”) on two issues: (1) whether
Phillips was denied the right to counsel and the right to a fair trial when the
trial court failed to hold a pre-trial sanity commission hearing or make a legal
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-30199
determination regarding his competence to stand trial and instead relied on a
mental health report; and (2) whether Phillips’s conviction was obtained in
violation of the Sixth Amendment right to counsel where the trial court failed
to ascertain whether his waiver of his right to counsel was made knowingly
and intelligently. For the reasons that follow, we AFFIRM.
I. Background
In 2012, Phillips was charged in Louisiana state court with three
counts of armed robbery. At a preliminary hearing, Phillips moved to
represent himself and waived his right to a jury trial. The trial court asked
Phillips a series of questions about his desire to represent himself and the
extent of his knowledge of the rules of evidence and rules of criminal
procedure. The court also advised Phillips of his right to counsel, the length
of the sentence he faced, the aid an attorney could provide, and that he would
not receive special treatment due to his pro se status. Despite these
advisements, Phillips insisted on self-representation.
Over the next few months, Phillips submitted various motions and
made several appearances in court. The trial court noted that Phillips
“exhibited strange behavior in court and in pleadings” and “question[ed]
whether [Phillips] ha[d] the mental capacity to proceed.” In particular, the
court articulated concern regarding Phillips’s attempts to argue issues
irrelevant to his motions and to relitigate issues already decided by the court.
Unsure whether Phillips had a mental defect or was “just obstructive and
arrogant,” the court ordered Phillips to be examined by a sanity commission
to determine whether Phillips could proceed.
In March 2013, the trial court determined that Phillips lacked the
mental capacity to understand the proceedings against him and committed
Phillips to the custody of the Eastern Louisiana Mental Health System. After
a comprehensive evaluation, hospital staff submitted a report notifying the
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court that Phillips had the “mental capacity to proceed.” The report noted
that hospital staff “never observed any symptoms consistent with a
depressive disorder, a psychotic disorder, an anxiety disorder, or a mood
disorder”; Phillips had “an (at least) average range IQ”; and Phillips did not
have any “cognitive defects that would interfere with his ability to proceed
to trial.” Therefore, the report concluded, “there [was] not any evidence of
an underlying mental disorder that would in some way impair his ability to
proceed.”
After receiving this report, the trial court held a hearing to determine
whether Phillips had the mental capacity to proceed. With “standby
counsel” present to assist Phillips, the court asked Phillips if he wanted to
introduce the report into the record showing that he was competent. Phillips
responded “yes.” The trial court then concluded he was competent.
Phillips proceeded to a bench trial where he represented himself with
the assistance of “hybrid counsel.” State v. Phillips, No. 14-254, 2014 WL
4926152, at *1 (La. Ct. App. Oct. 1, 2014). The trial court found Phillips
guilty and sentenced him to three consecutive thirty-year sentences. Id. at
*2. Phillips appealed: the Louisiana Court of Appeals affirmed Phillips’s
convictions and sentences, id. at *9, and the Louisiana Supreme Court denied
his writ for certiorari, State v. Phillips, 176 So. 3d 1035 (La. 2015) (Mem.).
Phillips’s attempts at state postconviction review were also unsuccessful. 1
The Louisiana Supreme Court denied Phillips’s application for supervisory
writs, determining that Phillips had “inexcusably failed to raise his claims in
1
The Louisiana trial court denied Phillips’s request for postconviction review for
failure to state a claim, and the Louisiana Court of Appeal denied Phillips’s application for
a supervisory writ of review.
3
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the proceedings leading to conviction” as required by La. Code Crim.
Proc. Ann. art. 930.4(B).
Turning to federal court for relief, Phillips filed his present petition
under 28 U.S.C. § 2254, asserting four arguments, including: (1) he was
denied the right to counsel and the right to a fair trial when the trial court
failed to hold a pre-trial sanity commission hearing or make a legal
determination regarding his competence to stand trial, instead relying on a
mental health report; and (2) his conviction was obtained in violation of the
Sixth Amendment right to counsel where the trial court failed to ascertain
whether his waiver of his right to counsel was made knowingly and
intelligently.
The district court determined that Phillips’s first two claims
(described above) were procedurally defaulted, his third claim lacked merit,
and his fourth claim did not warrant habeas relief. On those bases, the district
court denied habeas relief and a COA. Phillips timely appealed. We granted
Phillips’s motion for a COA as to Phillips’s first two claims, concluding that
Phillips had not challenged the conclusion of procedural default but that
reasonable jurists could debate whether he had demonstrated cause and
prejudice to overcome his procedural default. 2
II. Standard of Review
On a denial of a § 2254 application, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. Gregory v.
Thaler, 601 F.3d 347, 352 (5th Cir. 2010). Our review is also limited by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under
AEDPA, we cannot grant federal habeas relief on claims adjudicated on the
2
This court denied a COA as to Phillips’s remaining two arguments, concluding
that these claims did not satisfy the standard for obtaining a COA.
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merits in state court unless the adjudication resulted in a decision that:
(1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States”; or (2) “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
To the extent a petitioner challenges a state court’s factual findings,
“we afford the state trial court the deference due under § 2254(e)(1).”
Austin v. Davis, 876 F.3d 757, 789 (5th Cir. 2017). Under this highly
deferential standard, state court factual findings are presumed to be correct.
Id. § 2254(e)(1). Even when a state court dismisses a claim on procedural
grounds, deference is given to the factual findings unless the findings are
directly inconsistent with the highest state court’s ultimate resolution of the
case. See Austin, 876 F.3d at 776–79 (applying § 2254(e)(1) deference to
factual findings when state high court rejected claims on procedural
grounds).
III. Discussion
We now turn to Phillips’s claims that are before us. First, Phillips
avers that the trial court violated his rights guaranteed by the Sixth
Amendment because it “failed to hold a sanity commission hearing” when
determining Phillips’s competence and instead “relied extensively upon
mental health reports.” Second, Phillips argues that his conviction was
obtained “in violation of his Sixth Amendment right to counsel at trial”
because the trial court did not “ascertain whether [Phillips]’s waiver of
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counsel was made knowing[ly] and intelligently.” The district court
concluded that these claims were procedurally defaulted. 3
“A federal court generally cannot review the merits of a state
prisoner’s habeas petition if the claims in the petition are procedurally
defaulted.” Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir. 2010). Questions of
procedural default are assessed de novo on appeal. See Amos v. Scott, 61 F.3d
333, 338 (5th Cir. 1995). A claim is procedurally defaulted if the last state
court to address the claim explicitly rejected it on an “independent” and
“adequate” state law ground. Coleman v. Thompson, 501 U.S. 722, 729–30
(1991). To satisfy the “independent” and “adequate” requirements, the
state court’s dismissal must clearly and expressly indicate that it rests on a
state procedural bar, and the bar must be “strictly or regularly” followed by
state courts and applied “to the vast majority of similar claims.” Amos, 61
F.3d at 338–39 (emphasis omitted).
3 The State did not expressly argue that Phillips’s arguments were procedurally
defaulted. Nevertheless, a federal district court may find a procedural default on its own
motion, as the district court did here. See Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir.
1998) (holding that “a federal district court may, in the exercise of its discretion, raise a
habeas petitioner’s procedural default sua sponte and then apply that default as a bar to
further litigation of petitioner’s claims”); see also Day v. McDonough, 547 U.S. 198, 207
(2006) (“While the issue remains open in this Court . . . the Courts of Appeals have
unanimously held that . . . courts, on their own initiative, may raise a petitioner’s
procedural default.”); Coleman v. Goodwin, 833 F.3d 537, 541 (5th Cir. 2016)
(“[P]rocedural default is not subject to the customary doctrine of waiver. A state’s careless
or inadvertent failure to brief procedural default does not waive the argument; only a
purposeful and deliberate decision to forego the defense will do so.”). Day, addressing a
different habeas defense, requires that the petitioner have an opportunity to address a
court’s sua sponte consideration of habeas defenses. 437 U.S. at 210. Because the
magistrate judge made this determination to which Phillips had the opportunity to object,
this condition was met. See Phillips v. Vannoy, No. 1:17-CV-01041, 2019 WL 962201, at *1
(W.D. La. Feb. 27, 2019) (acknowledging Phillips’s objections to the magistrate’s Report
and Recommendations raising procedural default).
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Here, the Louisiana Supreme Court rejected Phillips’s claims
pursuant to a state procedural bar; citing La. Code Crim. Proc. Ann.
art. 930.4(B), the court denied relief because Phillips “inexcusably failed to
raise his claims in the proceedings leading to conviction.” This rejection was
based on independent state grounds; the court’s denial rested solely on state
law, and there is no indication that the court relied on any federal
constitutional law in denying Phillips’s claim. Additionally, courts regularly
apply La. Code Crim Proc. Ann. 930.4(B) to procedurally bar claims
from federal habeas review. See Holmes v. Vannoy, No. 16-6894, 2018 WL
941712, at *6 (E.D. La. Jan. 11, 2018) (describing art. 930.4(B) as a “well-
established . . . independent and adequate state court ground[] sufficient to
procedurally bar claims from federal habeas review” and collecting cases).
Therefore, the “adequacy” requirement is satisfied.
In sum, because the Louisiana Supreme Court rejected Phillips’s
claims on an independent and adequate state procedural ground, his claims
are procedurally defaulted.
Accordingly, the only way Phillips can prevail on his underlying claims
is if he is able to demonstrate either: (1) cause for and prejudice from the
procedural default; or (2) that a failure to consider the claims would result in
a fundamental miscarriage of justice. 4 Coleman, 501 U.S. at 750. “To
establish cause for a procedural default, there must be something external to
the petitioner, something that cannot fairly be attributed to him.” Johnson v.
Puckett, 176 F.3d 809, 816 (5th Cir. 1999) (internal quotation marks and
citation omitted). A lack of counsel or ineffective assistance of counsel may,
4
Only the first exception is relevant here. “Fundamental miscarriage of justice is
limited to cases where the petitioner can make a persuasive showing that he is actually
innocent of the charges against him,” McGowen v. Thaler, 675 F.3d 482, 499 (5th Cir. 2012)
(internal quotation marks and citation omitted), and Phillips has not attempted to do so.
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in some situations, constitute cause. See, e.g., Murray v. Carrier, 477 U.S.
478, 488 (1986).
Phillips attempts to overcome procedural default by showing cause
and prejudice. As cause, Phillips contends that the trial court violated his
Sixth Amendment right to counsel. The district court rejected Phillips’s
ineffective assistance of counsel argument, determining that the record
supported the state court’s finding that Phillips knowingly and intelligently
waived his right to counsel. Those factual findings are entitled to deference.
See Austin, 876 F.3d at 789, 776–79. Therefore, Phillips could not show cause
for the procedural default.
Phillips does not challenge this determination. He makes no argument
that the district court somehow erred in its conclusion that he was not
excused from procedural default. Although pro se briefs are afforded liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), even
pro se litigants must brief arguments to preserve them, Yohey v. Collins, 985
F.2d 222, 224–25 (5th Cir. 1993). Thus, Phillips has waived any challenge to
the district court’s determination regarding cause. Cf. Brinkmann v. Abner,
813 F.2d 744, 748 (5th Cir. 1987) (noting that a failure to challenge a district
court’s judgment is the equivalent of petitioner not having appealed the
judgment).
Even assuming arguendo that waiver does not apply, Phillips cannot
prove that he should be exempted from procedural default. Although Phillips
could show cause through ineffective assistance of counsel, Phillips has failed
to do so. The Sixth Amendment of the United States Constitution
guarantees a criminal defendant the right to the assistance of counsel. U.S.
CONST. amend. VI. However, the Sixth Amendment also implicitly grants
a criminal defendant the right to represent himself. Batchelor v. Cain, 682
F.3d 400, 406 (5th Cir. 2012) (citing Faretta v. California, 422 U.S. 806, 818–
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21 (1975)). A defendant who waives his right to counsel and opts to proceed
pro se “cannot thereafter complain that the quality of his own defense
amounted to a denial of ‘effective assistance of counsel.’” McKaskle v.
Wiggins, 465 U.S. 168, 177 n.8 (1984) (quoting Faretta, 422 U.S. at 834 n.46).
To represent himself, a defendant must knowingly and intelligently
waive his right to counsel and assert his right in a clear and unequivocal
manner. Faretta, 422 U.S. at 835. Accordingly, before accepting a waiver of
counsel, a court must conduct “a so-called Faretta hearing.” United States
v. Cano, 519 F.3d 512, 516 (5th Cir. 2008). At this hearing, the court “must
caution the defendant about the dangers of such a course of action so that the
record will establish that he knows what he is doing and his choice is made
with eyes open.” Id. (quotation omitted).
The record supports the conclusion that Phillips waived his right to
counsel. Thus, the court satisfied the Faretta-hearing requirements.
However, Phillips contends that the trial court’s later competency
determination rendered the initial Faretta hearing void. In essence, Phillips’s
argument is that the trial court should have conducted an additional Faretta
hearing since it subsequently found that Phillips lacked the mental capacity
to understand the proceedings against him. Given our deference to state
court findings, we disagree.
We acknowledge that the trial court did question Phillips’s
competency subsequent to the initial Faretta hearing. However, the
subsequent report prepared by treatment staff from the Louisiana
Department of Health and Hospitals confirmed Phillips’s competency: the
staff determined there was no evidence that Phillips suffered from an
underlying mental, cognitive, or psychotic disorder that would have impaired
his ability to proceed, noting that he was not incompetent even when he
arrived. Phillips, seemingly consenting to the contents of this report, agreed
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to its introduction into evidence during the June 2013 hearing. Based on the
report and lack of objection from Phillips, the trial court found that Phillips
was competent to proceed. We must defer to this finding. Phillips fails to
cite any authority for the proposition that, under the unique circumstances
here (where he was never actually incompetent), a subsequent Faretta
hearing was required. Thus, we need not address whether it would have been
in different circumstances (such as where he was incompetent when he
entered treatment but then was deemed competent later). The report’s
conclusions indicate that Phillips was competent at the time he was admitted
to the facility and had never suffered from any mental disorders. Phillips
chose to represent himself despite multiple warnings from the court
regarding the dangers and pitfalls of self-representation; he cannot now
attempt to establish cause based on an ineffective assistance of counsel claim.
In sum, we agree with the district court’s conclusion that Phillips’s
claims are procedurally defaulted and that he has failed to establish cause and
prejudice or a fundamental miscarriage of justice to excuse the default.
AFFIRMED.
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